Dáil Éireann díospóireacht -
Thursday, 19 Jun 1958

Vol. 169 No. 3

Transport Bill, 1958—Report Stage (Resumed) and Final Stage.

Mr. Dillon

I move amendment No. 13:—

In page 9, to delete lines 29 to 31, inclusive.

The purpose of this amendment is to delete sub-section (4) of Section 27. Sub-section (4) of Section 27 appears to make provision for the very unlikely development that a person convicted for a second offence under this Bill shall not have available to him the benefits of the Probation of Offenders Act. At first glance, that would appear to be a most reasonable provision, but I would ask the House to pause and reconsider this matter. It is highly unlikely that any rational district justice would apply the Probation of Offenders Act to a person who had, in fact, been convicted once before. All of us, however, who had any experience of the effort to provide mandatory penalties in legislation, have discovered from experience that it does not work. If you take away from the presiding judge the discretion to deal with each case on its merits, sooner or later, you will come up against some extraordinary case where you will bitterly regret having withdrawn the discretion originally there.

I am sure the Minister has had that experience himself. I certainly had it. The number of times I have laid down an absolute rule that in no circumstances whatever is any file to be put on my desk suggesting that a penalty in regard to a fishery offence should be remitted on compassionate grounds, is legion. I have never given such a direction, but some case turned up subsequently in which I was prepared to revise my views and say: "Here are circumstances I had never contemplated, never envisaged, in which I would be wrong if I allowed the natural inclination towards maintaining consistency to deter me from altering my original decision in order to see substantial justice done."

Can I persuade the House that sub-section (4) of this section is providing for a most unlikely contingency, but the very fact that it seeks to do that appears to me to withdraw from the district justice a most necessary discretion, because if circumstances ever arise that would bring into the district justice's mind the thought of giving a second offender the benefit of the Probation of Offenders Act, then the assumption is they are circumstances of the most exceptional character.

Let us not try to protect C.I.E. by grinding in the dirt some insignificant individual who, because the discretion has been taken from the district justice, has a penalty visited upon him, which in the eyes of justice, tempered by prudent mercy, should not be visited upon him. We are all inclined in this House to take a general view that I have heard leading members of the Government express, that you cannot have omelettes without breaking eggs. I am always thinking of the egg. If we do our duty in this House, it is with the egg we ought to be preoccupied. The strong, the organised and the vested interests can all defend themselves. It is the insignificant person who gets caught in the machine of the law who requires our solicitude as members of the House. All of us will agree that the institution of the Probation of Offenders Act was a great reform in the administration of the law. I want to urge on the House that you could not find a more inappropriate place wherein to withdraw the protection of that Act from the insignificant and weak than a Transport Bill, simply because we have an idea that we want to make the law more watertight than it has been heretofore in regard to illegal haulage.

I bespeak the solicitude of Deputies on all sides of the House for the person appearing before a district justice—a person once convicted and now charged again, but whose circumstances are so exceptional and extraordinary that the district justice wants to give him the benefit of the Probation of Offenders Act. I ask Deputies to consider the circumstances in which that possibility can arise and to decide that in the rare case where such circumstances do present themselves, the district justice shall not be stripped of his discretion in this matter and forced by an Act of this House to do something he believes, as an independent judge, is not justice, but which he must do because we have made it mandatory upon him to do it, even against his better judgment as a justice.

Mr. S. Lemass

In reply to Deputy Dillon, I do not think I can do better than quote the relevant paragraph of the Report of the Committee of Inquiry into Internal Transport. Paragraph 462 of that report is as follows:—

"Allegations have been made from time to time by the public transport undertakings that illegal haulage is both widespread and considerable but there is no means available by which its volume or nature can be properly assessed. No doubt where it is carried on systematically and extensively it is detrimental to the public transport undertakings and is a challenge to the law. We are of opinion that in cases of conviction the penalty should be sufficient to render illegal haulage unprofitable to the operator and so deter him from engaging in it. We consider, therefore, that a strong case exists for statutorily prescribed minimum fines especially in cases of repeated offences. We are aware of the objections in principle to minimum fines but we are satisfied that in the absence of effective penalties there is little likelihood of eliminating illegal haulage."

They recommended, therefore, that provision should be made on the lines set out in the Bill.

Mr. Dillon

Wait a moment. That deals with minimum fines. You have that in sub-sections (1), (2) and (3); I am concerned only with sub-section (4).

Mr. S. Lemass

The report continues:—

"We recommend, therefore, that for second and subsequent offences by persons convicted of illegal haulage, statutory provision should be made whereby the Probation of Offenders Act would not apply and minimum fines would be imposed at a level which initially would not be unduly punitive, but would increase steeply for subsequent offences."

I have the same feeling as the Deputy, that it is generally undesirable to limit the discretion of justices, but we have to recognise that this is the kernel of our transport problem. The inability to prevent breaches of the Road Transport Acts has not merely been the cause of grave loss to C.I.E., which has had to be made good by the taxpayer, but it is, in fact, undermining the whole transport policy of the State as it has developed over the past 25 years. We have also to recognise that, for reasons which are not always easy to understand, there is a tendency in the District Court to impose very nominal fines where offences of this kind are proved. There is often grave difficulty in detecting these offences, and still graver difficulty in securing the evidence to lead to a conviction. When that is possible and when an offence has been detected with sufficient evidence to secure a conviction, it is very discouraging to those trying to enforce the law and to those who are anxious to see the law enforced, if very nominal fines, which have no relation to the magnitude of the offence or to the profit which the individual achieved by breaking the law, are imposed.

Mr. Dillon

I am conceding all that to the Minister, even though I hate it.

Mr. S. Lemass

I do not think there is much point in having the minimum fine provision without having this sub-section dealing with the Probation of Offenders Act. The sub-section of the Probation of Offenders Act gives the district justice the power to dismiss the case and bind the defendant over, to require him to enter into recognisances to keep the peace where he is satisfied, amongst other circumstances, that the offence was of a trivial nature and where there were extenuating circumstances. The first thing we want to make clear is that we do not regard this offence in any circumstance as being of a trivial nature. I do not think that a district justice could seriously consider that where there was a repeated offence, it was of a trivial character.

Mr. Dillon

I agree.

Mr. S. Lemass

We are not anxious that extenuating circumstances should be pleaded. It is quite clear that those who break the law in this regard break it knowing well what they are doing. They do not do so by accident or inadvertence. Everybody knows it is illegal to carry goods for reward and those who do so quite consciously defy the law, in the hope of getting away with it by reason of the difficulty of enforcing the law. Notwithstanding this theoretical objection to the provisions of the section voiced by Deputy Dillon, unless we can make that provision effective, we will be coming back to the House looking for new subsidies or, alternatively, having to revise the whole policy on which we have been working.

Mr. Dillon

If he gets threequarters of his section, I think the Minister ought to take a chance.

An Ceann Comhairle

Amendment withdrawn?

Mr. Dillon

No. I am not calling for a division, but I want to put it to a vote.

Question—"That the words proposed to be deleted stand"—put and declared carried.

Mr. S. Lemass

I move amendment No. 14:—

In page 10, Second Schedule, to add to the Schedule a new paragraph as follows:—

7. Where a person who is in receipt of an annual sum and to whom paragraph 4 of the Fourth Schedule to the Act of 1950 applies reaches the age of 65 years, the reduction thereafter falling to be made under subparagraph (a) of that paragraph shall itself be reduced so that the aggregate of the amount of the annual sum and an amount equal to the annual value of the superannuation or benefit to which he is also entitled is not less than that aggregate as it stood immediately before he reached that age.

This is a technical amendment and it may be necessary to explain it very fully. The amendment arises out of discussions we have had with the representatives of the Transport Salaried Staffs Association. Indeed, it is based upon a proposal put forward by them. The effect is to ensure that redundant employees of C.I.E. in receipt of superannuation pension would, on reaching the age of 65, be entitled to apply their superannuation pension, in so far as it was sufficient, to offset the reduction in compensation pension effected at that age under the terms of paragraph 3 of the Schedule to the Bill.

The Transport Salaried Staffs Association had other objectives in mind. First of all, they wanted to create a situation in which, in the event of redundancy in the senior clerical staff, men who were approaching their retirement would be induced to accept redundancy. Secondly, they wanted to ensure that these redundant officers would, so far as possible, continue to be eligible for death benefits under the existing superannuation schemes. The association propose to negotiate with the Pension Fund Committees and with the Board of C.I.E. with a view to having the superannuation schemes amended so as to permit of the accrued pension rights of senior officers being frozen until their normal retirement age. Under the Bill as it stood, there would be no incentive to the older men to accept redundancy because they would, on becoming redundant, lose their pension rights and the reduced compensation pensions which they would receive after 65 years of age would be less than the full retirement pension to which they would have been entitled had they continued in the service of the company until normal retiring age.

Perhaps I had better give an illustration here of how this works out: a redundant salaried employee leaving the service of the board under the terms of the Bill as it stands and entitled to, say, £8 per week as compensation pension would receive that weekly sum until he was 65 years of age when it would be reduced to £6 per week. If the pension schemes are amended, as it is hoped, so as to enable him to qualify for an accrued superannuation pension rate of £6 per week at the age of 60, the position would be that his compensation pension would be abated by the amount of the superannuation pension. The net compensation pension he would receive from 60 to 65 would be only £2 a week, which, with his superannuation pension, would make £8 a week and, from 65, he would receive no compensation pension, only the superannuation pension of £6 per week.

It is obvious, therefore, that apart from this question of death benefits, for which he might be covered under the pension scheme, there would be no advantage to him in having his pension frozen and he would undoubtedly elect, if he became redundant, to withdraw his own contributions from the pension fund. Under the amendment proposed, the redundant salaried employee who elected to have his superannuation pension frozen would have his compensation pension abated from 60 to 65 by £6 a week, but after 65 the reduced compensation would be abated by only £4 a week in respect of superannuation pension, so that the total weekly sum he would receive would continue to be £8 per week.

The amendment would also apply to wages grade workers. Under the wages grade pension scheme, there is already provision for payment of reduced benefits to workers retiring within ten years of the normal retiring age of 65. Under the amendment, the position of such a worker entitled to compensation pension of, say, £6 per week and superannuation pension of, say, 15/- per week would be as follows: from retirement to 65, he would draw 15/- per week superannuation pension, plus £5 5/- per week compensation pension, making a total of £6 per week. After 65, he would draw a superannuation pension of 15/- per week, plus a compensation pension abated under the terms of the Schedule of £4 10/- per week making a total of £5 5/- per week. In that case, the superannuation pension to which the worker would be entitled would not be sufficient to offset completely the statutory abatement of compensation pension on his retiring at 65 years of age. I could give a number of other examples, but it is, perhaps, not desirable to do so.

One of the effects of this change is that no extra cost will fall upon the Exchequer. Indeed, it is possible that the Exchequer may have quite a considerable saving. Without this amendment, there would be no incentive to amend the pension schemes to provide for the freezing of superannuation rights and there would, therefore, be no reduction at any stage of compensation pension payable by the Exchequer in respect of superannuation pension drawn by the redundant employee. If, however, because of the amendment, arrangements are made, as the Transport Salaried Staff Association contemplate, for the freezing of pension rights, the Exchequer will be relieved under the provisions of Article 4 of the Fourth Schedule of the 1950 Act as modified by the proposed amendment.

In so far as redundant employees will gain from the arrangement, these gains will, of course, come out of the pension funds. A redundant employee at present loses pension rights and merely gets his own contributions back, but the contributions made to the fund by the board stay in the pension fund. If there were a large number of redundants involved, the solvency of the pension fund would be increased far beyond any normal expectations. The cost of increased benefit under the proposed amendment would, therefore, really be met out of this uncovenanted windfall to the pension fund.

It would, of course, be for the Transport Salaried Staff Association, or any other trade union concerned, to take up with the pension fund committees and with the Board of C.I.E. the question of amending the existing schemes in such a way as to provide for the freezing of pension rights and for enabling redundant workers to take advantage of this amendment. To give effect to any such amendment of the pension schemes, amending pension schemes would have to be submitted by the board to the Minister for Industry and Commerce for confirmation. This was a very useful and constructive suggestion which came from the Transport Salaried Staff Association and I was very glad to accept it, because we would, I think, all agree that it is desirable that there should be an inducement to the more senior members of the staff to accept redundancy, when redundancy offers and, secondly, because the resources of the pension fund can now be made available to increase the payments which these workers will get when they are retired for redundancy reasons.

Mr. Casey

The Minister has very fairly stated the dilemma in which the trade unions concerned found themselves arising out of this section of the Bill. It was appreciated that, as it stood at the time, there were difficulties. In particular, the trade unions would have difficulty in endeavouring to sell the idea to senior members to opt for redundancy, should redundancy arise. The trade unions, in common with the Minister, were anxious to ensure that if redundancy should arise, it would not be confined compulsorily to last-in-first-out. We were concerned to include compensation provisions which would prove sufficiently attractive to entice out people who were approaching the retiring age.

As it stood, the section had shortcomings and did not appear to provide sufficiently attractive conditions in that connection. The trade unions concerned made their representations and suggestions as to how that difficulty might be overcome. There were several ways of doing it and it is difficult to say which would be the most satisfactory. The amendment tabled by the Minister appears to cover the situation fully as far as the trade unions and the particular categories of workers are concerned. I hope it will do what it sets out to do.

I should like to place on record my appreciation and that of my trade union of the manner in which the Minister and the officers of the Department of Industry and Commerce met the trade union representations and for the attention and courtesy they extended in endeavouring to overcome this difficulty to the satisfaction of everybody concerned.

Amendment agreed to.

Bill, as amended, received for final consideration.

An Ceann Comhairle

Final Stage?

Mr. S. Lemass

Would the House agree to give me the Final Stage now? The meeting of the Seanad next Wednesday is largely conditional on this Bill being available.

Agreed to take the Final Stage to-day.

Question—"That the Bill do now pass"—put and agreed to.